International Law - Liberalism

A third critical ingredient in American ideology is a belief in the
political and economic values associated with liberalism. Dominant as an
American political philosophy, liberalism stipulates that the rights of
the individual supersede rights of the government, and as such, the
individual must be protected by law. Such notions, which are enshrined in
the Declaration of Independence and the Constitution's Bill of
Rights, proclaim the Lockean notions of protection of individual liberty,
private property, and the rule of law.

Belief in principles of liberalism imbues Americans with antagonism toward
authoritarian governments that suppress the civil and political rights of
their citizens. This can be seen in Woodrow Wilson's principle of
self-determination (1919); Jimmy Carter's human rights policy
(1976–1980); the Clinton administration's efforts to restore
democracy in Haiti and to use military force if necessary to overthrow the
military junta (1994); and the anticommunist impulse, especially during
the 1950s and 1960s, toward the Soviet Union and Eastern Europe, when
communist governments were viewed as enslaving their populations under the
control of a police state. Americans believe in individual rights and
democratic principles, and the U.S. government often seeks to translate
those beliefs into policies abroad.

During the 1990s these beliefs gave rise to the democratic peace theory, a
notion of democratic idealism. Liberals argue that democratic states are
less likely to wage war against each other, the fundamental proposition in
the democratic peace theory. Democracies are more lawabiding and pacific
because democratic norms and culture inhibit the leadership from taking
actions that might precipitate war. Democratic leaders must listen to
multiple voices that tend to restrain decision makers, and citizens of
democracies share a certain kinship toward one other. All of these factors
work together, the thinking goes, to diminish the possibilities of war.
Promoting democracy fosters peace, political stability, and greater
cooperation and collaboration in solving problems. Integrating this notion
into its foreign policy, the Clinton administration successfully used
economic and political incentives to promote democracy in Russia as well
as states in Latin America, Eastern Europe, and Asia. By the beginning of
the twenty-first century more states than ever before were nominally
democracies.

Since revelations of the Holocaust in 1945, the protection of human rights
has emerged as a major concern of international law. World attention to
human rights has intensified because of television coverage of the horrors
of gross violations, increasing efforts of nongovernmental organizations
to promote concern for human rights abroad, and growing awareness that
human rights violations are a major source of international instability.
For the United States, the contemporary realm of human rights law flows
directly from both the government's evolving experience in
protecting the civil rights and liberties of its citizens and the goal of
extending those protections to peoples everywhere. Many human rights norms
are modeled after rights, liberties, and protections incorporated into
U.S. constitutional law, American jurisprudence, and the national welfare
system instituted during the mid-1930s under the administration of
Franklin D. Roosevelt. Not surprisingly, the American people tend to
support foreign policies that champion and enforce such human rights
standards. To codify such standards, U.S. foreign policy has strived to
create global human rights law through the adoption of prominent
international legal agreements, to which most states have become lawfully
obligated. As a consequence, the United States has assumed a leading role
in promoting the negotiation and promulgation of human rights instruments.
Yet a paradox persists here for U.S. foreign policy and international
human rights law. On the one hand, the United States, more than any other
government, is responsible for initiating, engineering, and bringing into
force most of these agreements. On the other hand, the political concerns
of some U.S. government officials that these treaties might be used to
interfere into domestic affairs have prompted partisan isolationist
impulses that continue to preclude a number of them from being ratified
into U.S. law. Even so, the United States can take credit for
substantially contributing to the codification of global human rights law
and became a contracting party to several core instruments: the 1948
Genocide Convention (132 contracting parties); the 1966 Convention on the
Elimination of All Forms of Racial Discrimination (157 contracting
parties); the 1966 International Covenant on Civil and Political Rights
(147 contracting parties); and the 1984 Convention against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (124
contracting parties). Although actively participating in negotiations
leading to their promulgation, at the turn of the century the United
States remained outside legal obligations associated with a number of
other important human rights treaties, including the 1951 Convention
Relating to the Status of Refugees (137 contracting parties); the 1966
Covenant on Economic, Social, and Cultural Rights (147 contracting
parties); the 1973 Convention on the Prevention and Punishment of the
Crime of Apartheid (101 contracting parties); the 1979 Convention on the
Elimination of All Forms of Discrimination Against Women (168 contracting
parties); and the 1989 Convention on the Rights of the Child (191
contracting parties). Each of these treaties includes specific human
rights protections that have generated ideological preferences in the U.S.
Senate for isolationism, exceptionalism, and
pragmatism—considerations that supersede that of codifying idealism
and moralism into legal obligations binding American policy.

Even though democracy and respect for human rights have prominent stature
as American political values, the application of such norms to U.S.
foreign policy remains inconsistent. Throughout the Cold War years, a
state's human rights record had little to do with whether it
received foreign aid from the United States, which sought to aid
anticommunist governments even if they were oppressive to their own
people. Witness, for example, U.S. support for the Somoza regime in
Nicaragua, the shah in Iran, the Marcos government in the Philippines, and
the white minority government in South Africa even during the Carter
administration, the strongest proponent of a U.S. foreign policy grounded
in human rights considerations.

There likewise persists among Americans a strong aversion to military
intervention into another state's affairs even to install a
democratic regime or to protect principles of human rights. Americans
appear quick to champion human rights rhetorically, but they abhor taking
action to implement or guarantee them for peoples in other states. This
penchant is a legacy of the Vietnam War and the manifest disinclination to
send troops abroad. American policymakers usually rule out U.S. military
intervention undertaken to protect the human rights of peoples elsewhere
because of the high political costs that casualties would produce at home
for the administration. This socalled Vietnam syndrome explains in large
part the readiness of the Clinton administration to quit Somalia abruptly
in 1993 and its unwillingness to send U.S. troops to suppress gross
genocidal atrocities being perpetrated in Bosnia during 1991–1994,
Rwanda in 1994, and Sierra Leone in 1999. In the same vein, the Clinton
administration downplayed human rights abuses in the People's
Republic of China in favor of consistently supporting renewal of its
most-favored-nation trade status, as well as in supporting the admission
of China into the World Trade Organization. Clearly the strategic
implications for the United States of a secure economic relationship with
China overrode moralistic concerns that advocate stronger protection for
human rights for its population.

As instilled in the American political culture, liberalism also assumes an
economic dimension. This aspect takes the form of laissez-faire
capitalism, which, like liberal democracy, concentrates on the free will
of the individual. Key values earmarking the U.S. brand of capitalism turn
on the profit motive, private property, and the free market as a means of
guaranteeing rewards for persons who earn their way. Sustained U.S.
commitment to capitalism during the Cold War years worked to define
socialism under the former Soviet Union and its communist satellites as
dysfunctional and menacing to the world economy. Pursuit of capitalism by
the United States also coalesced with American economic and political
supremacy after World War II to facilitate its ability to assert the
leading role in constructing the postwar world economic order. Critical
was the U.S. capacity for proposing and legally assembling core
international treaties and institutions, which have continued to regulate
international economic relations. Put tersely, the American conviction in
the liberal values of capitalism bolsters the U.S. emphasis on
international trade and commerce and generates pronounced impacts for the
role that international law must perform in U.S. foreign policy.

The United States emerged as the world's economic superpower during
the last half of the twentieth century. It did so by realizing that
international trade with other states and foreign multinational
corporations would be essential to its continued economic well-being and
prosperity and by negotiating bilateral treaties of friendship,
navigation, and commerce with nearly every state in the international
community. In addition, the national economies of states devastated by
World War II, especially those of Europe, had to be rebuilt. To this end
the United States assumed the lead role as early as 1944 in proposing and
negotiating the Bretton Woods agreement, which established a new monetary
order and created the International Monetary Fund and the International
Bank for Reconstruction and Development (the World Bank) to advance and
regulate the world economy. In late 1947 the United States successfully
promoted negotiation of the General Agreement on Tariffs and Trade (GATT),
which became effective on 1 January 1948. Initially signed by twenty-three
countries accounting for four-fifths of world trade, this multilateral
trade agreement prescribed fundamental principles to guide international
commercial transactions among most states: free, nondiscriminatory trade;
unconditional use of the most-favored-nation clause; reciprocity and
mutual advantage in trade relations; reduction of tariffs; and elimination
of protective barriers. These principles became the cornerstones of U.S.
trade goals in the postwar economic order, and by 1993 the GATT had
attracted 130 states as contracting parties.

From 1947 to 1993 the United States played the pivotal role in the
GATT's multilateral trade conference negotiations (called
"rounds"). The 1986–1994 Uruguay Round produced the
most ambitious trade liberalization policies yet, and led to creation of
the World Trade Organization (WTO), an institution proposed and strongly
supported by the United States in its foreign economic policy. On 1
January 1995 the GATT was replaced by the WTO. Charged with monitoring and
regulating international commerce, in 2001 the WTO had 142 members,
accounting for 90 percent of world trade. The organization serves as a
forum for administering trade agreements, conducting negotiations, and
settling trade disputes; it also has the power to enforce provisions of
the GATT and to assess trade penalties against countries that violate the
accord. WTO rules, which cover commerce in goods, trade in services,
intellectual property rights, dispute settlement, and trade policy
reviews, consist of sixty agreements that run thirty thousand pages in
length. While critics might grumble about diminished sovereignty, U.S.
foreign policy clearly benefits from the WTO's legal guarantees of
nondiscriminatory free trade and the mandatory legal process created for
settlement of disputes between member states. From 1995 through 2001 the
United States brought fifty-seven complaints to the WTO and had to answer
forty-nine complaints by other countries. In cases actually decided by the
WTO litigation process, the United States prevailed sixteen times and lost
sixteen times. In twenty-seven cases, disputes were resolved to U.S.
satisfaction without litigation. Critical to appreciate is that the U.S.
government complied with WTO juridical processes and its arbitral
panels' rulings, irrespective of the outcome. In these dispute
situations, U.S. foreign policy allocates greater import to the rule of
law than to pragmatic self-interest or belief in the virtues of
America's economic might.

The GATT and the WTO strengthen and make more stable the international
trading system that has fostered unprecedented global economic growth
since the 1950s. More than any other government, the United States has
been the architect of that system. While the lawfulness of its foreign
trade policy might be tested at times through multilateral institutions,
the United States is willing to accept that price to preserve economic
order and support for the liberal principles of international commerce. To
this end, U.S. foreign policy-makers cede preference to the long-term
benefits of international legalism and liberalism over the costs that
would be incurred by national exceptionalism and isolationism.

The regional dimension of U.S. economic policy exists in the North
American Free Trade Agreement (NAFTA), which entered into force for the
United States, Canada, and Mexico on 1 January 1994. The agreement, which
exceeds two thousand pages, established schedules for reducing tariff and
nontariff barriers in nearly all of twenty thousand product categories.
NAFTA also expanded foreign investment opportunities and other financial
transactions among the three states. While many uncertainties persist over
the economic impacts of NAFTA, one obvious reality is the much freer flow
of goods, services, and investments among the three member countries. Once
again, U.S. foreign policy operates through agreed-upon international
legal conduits to attain liberal economic goals of freer,
nondiscriminatory trade relations with its neighbors. In a world of
accelerating globalism and economic interdependence, the creation,
implementation, and respect for international economic law becomes
increasingly necessary for the United States.

U.S. foreign policy sometimes uses economic instruments as sanctions
against other states. Throughout the Cold War, strategic embargoes were
levied against trade with communist bloc countries in Eastern Europe as
well as the Soviet Union, China, Vietnam, North Korea, and Cambodia. With
the end of the Cold War the United States continued to apply its own
legislative sanctions against certain states, namely, Cuba, Iran, Iraq,
and Libya, and cooperated with the UN Security Council in imposing
economic sanctions against a number of other governments. The U.S.
economic embargo of Cuba reflected a policy steeped in liberal,
ideologically messianic ambitions to install democracy in that country. At
the same time, the sanctions stood as a symbol of U.S. unilateralism,
driven by forces of self-virtuosity. A number of measures, including the
1996 Helms-Burton Act, applied sanctions against Cuba and foreign
companies doing business with the Castro government. These sanctions
represented the effort by the United States to link trade relations to the
nature of the Cuban government in order to pressure the Cuban people to
overthrow Castro in favor of democracy. But this policy was condemned by
the UN General Assembly, Organization of American States, Canada, and
several European governments. While the goal of turning Cuba into a
democracy may have seemed admirable, the means used appeared
counterproductive.